Barrister Marie Dyhrberg KC told Checkpoint finders keepers sounded good in theory, but it was not always the case.
“At the moment the judge has ruled, we’re not going to get rid of the property, we’re restraining it until we have a proper argument as to whether the money becomes property of the Crown as being tainted property or proceeds of crime,” she said.
The other argument was the homeowners would argue the tainting of the money was lost the moment it came into their hands.
“They will argue they are unrelated innocent parties and if property passes to that class of person, the taint has lost,” she said.
“What the outcome will be in this particular position will depend on what the court makes of that argument.”
She said strictly speaking in law, there was no requirement for anybody to hand over property they find.
“But most people say, look, you’re wise to do it if it’s substantial to hand it over to the police because there may be circumstances whereby you can, nonetheless, be charged with theft and so forth,” she said.
“You make efforts, you try to find out who the legitimate owner is at that point. If you can’t establish that, then some people can say I can hold that, and there’s no requirement to give it to the police.”
Once the police got hold of it, they could argue the nature of the property was illegal and the finders could not keep it, she said.
“They can say it belongs to the state and you cannot transfer it legitimately, this is what this argument’s going to be about when it comes to the forfeiture.”
Dyhrberg said if a person found an amount of cash, in New Zealand law, they were not legally obliged to report it.
However, there were several factors people may take into account when they considered reporting it to police, she said.
“We say to ourselves, if I found that sort of money, I wouldn’t tell anyone. But in theory these people were suspicious, they were concerned about their safety, they thought, well, maybe morally we should try to find out if it belongs to anyone, we can find an owner.”
People would act differently in different circumstances, she said.
“It seems to be that primarily people will say, ‘look, I’m going to take the safe way out, I’m going to hand it to the police and if it’s not claimed within a particular period of time, I get it back’,” she said.
But sometimes cases were more complex.
“As we’re finding out with this case, they are saying right at this point, it doesn’t matter whether they found it, and they were innocent, and it was unrelated.
“It was and remains and stays, proceeds of crime tainted property belongs to the state, so there’s going to be a very interesting argument when it comes to court.”
Dyhrberg said police would have to prove the money was tainted.
“When it comes to whether you should have to give the property up or not, that is on the balance of probabilities.
“They’ll put all those arguments forward and that’s where it will fall on the Crown to prove balance probability, it’s tainted, therefore, we should keep it.”
